JUDGMENT :

Umesh Kumar, J.

1. This appeal is directed against the impugned judgment and order dated 23.09.1988 passed by learned 4th Addl. Sessions Judge, Saharanpur in S.T. No. 371 of 1985 arising out of Crime No. 238 of 1982, by which, he has convicted the accused-appellants Rafal, Tilak Ram and Ompal for life imprisonment under Section 302 read with Section 34 of IPC and under Section 323 read with Section 34 IPC for one year rigorous imprisonment. Both the sentences were ordered to run concurrently.

2. Briefly, the facts giving rise to this appeal are that the informant-Brahamanand gave a report on 06.07.1982 at about 03.15 a.m. in the morning at police station, Jwalapur, sub-district Roorkie, Saharanpur, alleging that they had an old enmity with Rafal and Tilak Ram. On 05.07.1982, brother-in-law of Rafal came to his village at about 8.00 p.m. in the night. His son Babu Ram was going to his house and when he reached in front of the house of accused-Rafal, Rafal armed with Pathal (daranti), accused Tilak Ram armed with Ballam and accused-Ompal armed with lathi surrounded Babu Ram and assaulted him. On the cry of Babu Ram, Budh Singh son of Mukunda, nephew of informant who resides w